Allentown police videos not public records

Then how did the Taser video from Dieruff High School get out?

December 21, 2011|Paul Muschick | The Watchdog

Last week's release of a city video showing an Allentown police officer shooting a high school student with a stun gun may have you wondering if you can obtain footage from the surveillance camera on your corner.

The answer is no, at least not by using the state's Right-to-Know Law.

The state Office of Open Records recently ruled the city can withhold videos for security purposes.

The ruling was in response to an appeal filed by a city man, Joseph Cap, who had used the Right-to-Know Law to request footage from two cameras in his neighborhood for a 35-minute period in July. The city had denied his request, saying the recordings didn't have to be released under the law.

Cap appealed to the state office, which denied his claim in October.

In his written request to the city, Cap said cameras at E. Long and S. Dauphin streets and near Cumberland and S. Dauphin streets had "captured an incident."

His request doesn't specify the nature of the incident, and I couldn't reach Cap to get further details.

"The clips should depict various views from the general area to various degrees of close ups and magnification to clearly depict the individuals exiting their residences and heading to the intersection of Cumberland and S. Dauphin Sts., proceeding south on S. Dauphin St. to E. Long St., and turning west onto E. Long St.," Cap wrote.

He said if the requested videos "failed to provide clear facial identifications and their residences," the city should preserve videos from those two cameras and any other surveillance cameras in the area so he could view them.

In September, the city denied him access to the recordings, citing a provision in the Right-to-Know Law that exempts the disclosure of a record that "would be reasonably likely to result in a substantial and demonstrable risk of harm to the personal security of an individual."

The city also cited a provision that exempts the release of a record "relating to a noncriminal investigation that, if disclosed, would constitute an unwarranted invasion of privacy."

"Although citizens have no expectation of privacy from intrusion by the government in public places by way of the cameras, the city's surveillance video is not to be used by residents to check up on their neighbors," assistant solicitor Frances Fruhwirth told Cap in her denial letter. "That is not the purpose of the police cameras."

In his appeal, Cap argued the city didn't explain how releasing the videos would endanger anyone; didn't offer proof the videos were part of a noncriminal investigation; and didn't explain how releasing the videos would infringe on the expectation of privacy in public areas.

"The public has a expectation of privacy only in enclosed public bath rooms, dressing areas at pools and stores," Cap wrote. "The requested videos are of street scenes with vehicles and pedestrians."

He said he was personally depicted in the requested videos, and he saw no one being interviewed or other evidence of an investigation.

Because the Right-to-Know Law does not require people to explain why they want a record or what they intend to do with it, Cap argued the city denied his request "frivolously" and in "bad faith" by admonishing him about trying to use the videos to snoop on neighbors.

In its response to the appeal, the city dropped its argument that the videos were protected because they were part of a noncriminal investigation. It argued the videos shouldn't be released because of security reasons.

The city submitted an affidavit from Assistant Police Chief Daniel Warg that says "allowing access to the video surveillance tapes would undermine the police department's investigation procedures."

Warg said there are "blind spots" on the recordings because of how the cameras move. He said releasing recordings would reveal the cameras' limitations, allowing people to do "illicit activities out of the view of the cameras, causing a material, real, obvious and apparent risk of harm to residents and visitors."

The state Office of Open Records sided with Allentown in the appeal, saying the city proved the records are exempt from disclosure.

You may be wondering, then, how the city surveillance video of 14-year-old Keshana Wilson being shot with a Taser outside Dieruff High School in September became public. The video is on The Morning Call website.

Rick Orloski, the lawyer for the student's mother, included a copy of the video with a federal lawsuit he filed this month alleging excessive force was used by Allentown police officer Jason Ammary.

Orloski didn't return my calls, so I couldn't ask where he got the video. A colleague, Manuel Gamiz Jr., told me Orloski told him he got the video through the court system because the city introduced the recording at Wilson's juvenile court hearing on the charges that were filed against her as a result of the incident.

City spokesman Mike Moore told me Orloski did not obtain the video from the city.

While surveillance video may be exempt from release under the Right-to-Know Law, lots of other information is available to you, including financial records and records about government services.

You can use the law to bolster your case if you have a dispute with your government, as one family did recently when they had a problem with sewage backups in their basement. After they got records showing the sewer line in front of their home hadn't been maintained, the sewer authority paid for the damage.

More information about the Right-to-Know Law and how to use it is on my blog at http://blogs.mcall.com/watchdog/.

The Watchdog is published Thursdays and Sundays. Contact me by email at watchdog@mcall.com, by phone at 610-841-2364 (ADOG), by fax at 610-820-6693, or by mail at The Morning Call, 101 N. Sixth St., Allentown, PA, 18101. Follow me on Twitter at mcwatchdog and on Facebook at Morning Call Watchdog.